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sickness, death, or other sufficient reason, no attempt was ever made to mend or replace that chain, or to again use that specimen of the apparatus. Such events would constitute an unsuccessful abandoned experiment, but nevertheless they would probably be held to negative the novelty of the Stevens patent, because they would teach the public how to make and use specimens of the Stevens brake about as effectually as if the chain F had not parted. It is believed that no precedent exists for an opinion contrary to this; and if one is hereafter discovered or made, it will probably be found to be inconsistent with at least one decision of the Supreme Court.

The truth, therefore, appears to be that an unsuccessful abandoned experiment may possibly negative the novelty of a later invention, and that where it fails to have that effect, it would have failed, even if it had been neither unsuccessful nor abandoned. Novelty is to be ascribed to new things, regardless of whether old and different things were successful or unsuccessful, abandoned or not abandoned. Novelty is to be denied to old things, regardless of the accidents which caused earlier specimens of the same things to fail to operate, or caused their use to be discontinued.

$ 64. The question of the novelty of a design, is to be determined by the comparative appearance of that design and of prior designs, in the eyes of average observers, and not by their comparative appearance in the eyes of experts making an analytical inspection.' Nor is the novelty of any design negatived by the fact that all of its features can be collected out of scattered prior designs.'

$ 65. Novelty is not negatived by anything fundamentally incapable of the function of the thing covered by the patent, even though the character of the prior thing was chemically


Pickering o. McCullough, 104 U. S. 319, 1881.

· Perry v. Starrett. 3 Bann. & Ard. 489, 1878; Foster 0. Crossin,

23 Fed. Rep. 402, 1885; Kraus o. Fitzpatrick, 34 Fed. Rep. 39, 1888.

3 Simpson o. Davis, 12 Fed. Rep. 144, 1882.


identical with the patented thing, or mechanically similar thereto.

In Morey v. Lockwood' the prior Mau syringe was relied upon to negative the novelty of the syringe of Dr. Davidson and his brother. The latter is the now well-known soft rubber bulb apparatus. The former was exactly like it, except that the central part was a soft rubber cylinder with metallic heads, instead of a soft rubber bulb. The mode of operation of the two syringes was identical. The Mau apparatus proved to be of no practical value, simply because the metallic heads of the cylinder strongly counteracted the user's efforts to compress its rubber walls. Feeble persons could not use it, and those who had enough muscular power did not care to perform the needed labor. Practically, therefore, the Mau syringe proved to be of no value, and very few were ever sold. For these reasons the Supreme Court held that it did not negative the novelty of the Davidson patent.

The Wood Finishing Co. v. Hooper' is a case the patent involved in which, covered the employment of finely powdered flint, quartz, or feldspar, mixed with oil or other fluent substance, for the purpose of filling the pores of the surface of wood. A prior patent had been granted for the employment of silicious marl or infusorial earth for the same purpose. It was shown that all five of these substances consisted mainly of silica or the oxide of silicon, but that the first three differed from the last two in being non-absorbent instead of porous, and in consisting of angular instead of rounded particles. These two differences made the first three substances very valuable for wood-filling, whereas the others were not valuable for that purpose. Judge NATHANIEL SHIPMAN, therefore, decided that the prior patent did not negative the novelty of the later one.

$ 66. Novelty is not negatived by the fact that every part of the patented thing is old. This rule necessarily follows


Morey o. Lockwood, 8 Wallace, 230, 1868.

? Bridgeport Wood Finishing Co.

0. Hooper, 5 Fed. Rep. 63, 1880.

3 Bates v. Coe, 98 U. S. 48, 1878; Imbaeuser o. Buerk, 101 U. S. 660,

from the doctrine which allows patents for new combinations of old devices. In such cases the whole is different from the sum of all its parts, precisely as this printed page is different from what it would be if the same words were arranged in alphabetical order, or were printed promiscuously upon the paper. If, however, a new assemblage of old things amounts only to aggregation and not to combination, or if it results in no new mode of operation, the patent which covers it will be void for want of invention,' though not void for want of novelty.

$ 67. Novelty is not negatived by any prior accidental production of the same thing, unaccompanied by knowledge on the part of the producer sufficient to enable him to repeat that production. The reason of this rule arises out of that point of patent law policy which rewards persons for teaching the public how to perform processes and construct things which nobody else in the United States knew how to perform or to construct, and relevant to which no adequate information could be found in any public patent or printed publication anywhere in the world. But novelty is negatived by proof of prior use, where that use was understood in point of method, though not correctly understood in point of result.”

$ 68. Novelty is not negatived by anything which was neither designed, nor apparently adapted, nor actually used, to perform the function of the thing covered by the patent, though it might have been made to perform that function by means not substantially different from that of the patented invention. This rule rests upon the same reason as the rule of the last section, and is even more favorable to


1879; Parks 0. Booth, 102 U. S. 104, 1880; Cantrell o. Wallick, 117 U. S. 694, 1885; Johnson o. Railroad Co. 33 Fed. Rep. 501, 1888.

i Sections 32 and 37 of this book.

? Ransom o. New York, 1 Fisher, 265, 1856; Pelton o. Waters, 1 Bann. & Ard. 599, 1874; Andrews 0. Car

man, 2 Bann. & Ard. 277, 1876.

3 Dorlon 0. Guie, 25 Fed. Rep. 816, 1885.

* Clough v. Mfg. Co. 106 U. S. 178. 1882; Bell Telephone Co. v. Dol. bear, 17 Fed. Rep. 605, 1883; Kittle v. Hall, 29 Fed. Rep. 514, 1887.

patentees than that. Though recently established, it is established thoroughly, inasmuch as it is the result of repeated and careful consideration by one of the ablest patent jurists in the United States, and inasmuch as, in establishing it, his associates on the Supreme bench concurred with him in reversing his own decision on the circuit.

The rule of this sectiou cannot govern any case which lacks either of the circumstances upon which it is founded, for negation of novelty is not averted by the mere fact that the inventor of the prior device did not design it to perform the function of the patented device,' nor by the mere fact that its ability to perform that function is not apparent to every beholder, nor by the mere fact that it was never actually used for that purpose, nor by any two of these facts combined.

$ 69. Novelty is not negatived by anything which was invented, patented, or described in a printed publication prior to the granting of the patent sought to be anticipated, or even prior to the application therefor, unless the anticipating event occurred prior to the date of the invention secured by that patent.”

One apparent exception to this rule has been stated in an obiter dictum by the Supreme Court,' and indorsed in another obiter dictum by Judge MCKINNON. In those instances it was said that where two patents for the same invention are granted to the same inventor, the last and not the first is void, even where the last was first applied for. The exception is however only apparent, because the patent last applied for is as much entitled to date from the making of the invention as the other. The date of invention assignable to the two patents being exactly the same, the first patent will negative the novelty of the last, regardless

Leonard o Lovell, 29 Fed. Rep. 315, 1886.

* Cochrane o. Deener. 94 U.S. 791, 1876; Elizabeth v. Pavement Co. 97 U. S. 130, 1877; Parker v. Hulme, 1 Fisher, 52, 1849; Bartholomew o.

Sawyer, 1 Fisher, 520, 1859.

3 Suffolk Co. v. Hayden, 3 Wallace, 315, 1865.

4 M'Millin 0. Rees, 5 Bann. & Ard. 259, 1880.


of which was first applied for. The dictum of the Supreme Court in this matter is not inconsistent with Judge LOWELL's decision,' that, “ in the absence of other evidence of the dates of invention, the first application must be taken to represent the first invention;" because the fact of an identical inventor is evidence, in such cases, that the date of invention was identical. No man can make one invention at two different times.

And the dictum in Suffolk Co. v. Hayden has no applicability to a case where an inventor takes out a patent which describes and claims what was described but not claimed in a prior patent of his ; because in such a case the prior patent is not for the same invention as the last.'

$ 70. In order to apply the rule of the last section, it is necessary to fix the date of the invention covered by the patent sought to be anticipated. In cases where the invention may be exhibited in a drawing or in a model, it will date from the completion of such a model or such a drawing as is sufficiently plain to enable those skilled in the art to understand the invention ;' and patented inventions always date at least as early as the dates of the execution of the original applications therefor, provided the original applications exhibit the inventions with the above-mentioned extent of sufficiency. In cases where a patented invention was explained in words, without the aid of any model or any drawing, it will date from the completion of such a written description as would teach others how to make and use the invention described. In cases where the inventor makes a specimen of the thing invented before he makes any model, or drawing, or written description to represent that thing, the




Pennington o. King, 7 Fed. Rep. 462, 1881.

Engle Mfg. Co. v. Bradley, 35 Fed. Rep. 297, 1888.

ent Cases, 78, 1847: Farley o. Steam
Gauge Co. 1 McArthur's Patent
Cases, 621, 1859: Hubel o. Dick, 28
Fed. Rep. 139. 1886.

3 Loom Co. o. Higgins, 105 U. S. 594, 1881; Heath o. Hildreth, 1 McArthur's Patent Cases, 24, 1841; Perry o. Cornell, 1 McArthur's Pat

* Kearney o. Railroad Co. 32 Fed. Rep. 322, 1887; National Machine Co. 0. Brown, 36 Fed. Rep. 321, 1888.

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